« Previous | Contents |
Listen
Footnotes
1 Report
www.scotland.gov.uk/stratreviewlegalaid
; Summary
www.scotland.gov.uk/stratreviewlegalaidsumm ;
Background Information-
www.scotland.gov.uk/stratreviewlegalaidbackground
2 This working definition is based on the term
'justiciable event' used by Prof. Hazel Genn and Prof. Alan
Paterson in their 'Paths to Justice Scotland' research.
(Genn H. and Paterson A. (2001)
Paths to Justice Scotland - What people in Scotland do
and think about going to law, Hart Publishing) Genn
and Paterson defined 'justiciable event' as 'a matter
experienced by a (person) which raised legal issues,
whether or not it was recognised by the (person) as being
'legal' and whether or not any action taken by the (person)
to deal with the event involved the use of any part of the
civil justice system'.
3
Advice and Assistance makes it possible to
obtain initial legal advice from a solicitor, or where
appropriate, from counsel, on any matter of Scots law.
Advice and Assistance is therefore available on a wide
range of civil matters including matrimonial issues, debt,
employment and injury, as well as for criminal matters. The
discussion and proposals in this section of the
consultation paper relate only to Advice and Assistance on
civil matters. Advice and Assistance does not cover a
solicitor representing his or her client in court or at a
tribunal.
Assistance By Way of Representation is a
form of advice and assistance, which allows a solicitor or
counsel to represent a client in specified civil (and
criminal) proceedings in certain courts and tribunals.
Civil legal aid is, broadly speaking, a
form of legal aid which provides for representation by a
solicitor or counsel in civil proceedings before a court
specified in the Legal Aid (Scotland) Act 1986.
4
Homelessness and housing advice: Section 2(1) of
the Housing (Scotland) Act 2001 places a requirement on
local authorities in Scotland to secure that advice and
information about homelessness, the prevention of
homelessness and any relevant services are available free
of charge in their areas.
The Scottish Executive has issued guidance which
requires councils to take a corporate approach to this duty
and to the planning of advice on homelessness and housing,
setting out three roles for local authorities: provider of
advice, funder of advice services, and strategic planner of
advice provision. Local authorities evidence their
compliance with this duty in their homelessness strategies
and local housing strategies, and are monitored through the
Communities Scotland single regulatory framework. Guidance
has also been issued to local authorities on strategic
planning of housing information and advice provision. The
Scottish National Standards for Housing Information and
Advice, published by HomePoint, are the standards which
councils must apply in the discharge of their statutory
duty. An external audit process of housing information and
advice services has been established to provide the
evidence route to compliance with the section 2(1) duty for
local authorities.
Money advice: Following the introduction of the
Debt Arrangement and Attachment (Scotland) Act 2002 a Debt
Arrangement Scheme (
DAS) has been introduced. A key feature
of the Scheme is the role of approved money advisers in
guiding debtors through the process. In co-operation with
the advice sector the Scottish Executive has set up a
process to recognise the appropriate skills and
competencies of advisers that are required for approval. At
the same time the Executive has invested significantly to
ensure additional money advice provision.
A key issue of this increased money advice provision
is maintaining the quality of services given to clients.
With this in mind the Executive is now developing a quality
system for money advice, based on the Scottish National
Standards for Housing Information and Advice.
5 Pleasance P. et al. (2004)
Causes of Action: Civil law and Social Justice,
London, the Stationery Office
6 See: Genn H. and Paterson A. (2001)
Paths to Justice Scotland - What people in Scotland do
and think about going to law, Hart Publishing;
Justice 1 Committee (2001),
Report on Legal Aid Inquiry, Scottish Parliament.
Scottish Executive (2001),
Review of Legal Information and Advice Provision
Scottish Executive (2003),
Legal Information and Advice Provision in Scotland: A
Review of Evidence
Scottish Executive (2004),
Strategic review of the delivery of legal aid, advice
and information
7 Pleasance P. et al. (2004)
Causes of action: Civil law and Social Justice,
London, the Stationery Office
8 'Match funding' describes the situation where
different funders provide a share of the funding required
to provide a particular
PFLA service, and have agreed with each
other (and the service provider) to do so.
9 This is consistent with earlier recommendations
from the Justice 1 Committee in its report on Legal Aid
Inquiry (2001) and from the Community Legal Service Working
Group in its 'Review of Legal Information and Advice
Provision in Scotland' (
ROLIAPS Report) of November 2001.
10 A person who is legally aided
may have to pay for their case in full out of the property
they have recovered or preserved as a result of the action
(this is often referred to as 'clawback'). This arrangement
is similar to charging arrangements for privately paying
clients whereby a solicitor can obtain a charging order to
secure his fees and outlays from property recovered or
preserved.
11 The Scottish Compact can be accessed on
www.scotland.gov.uk/library5/social/sccm-00.asp , and
the Good Practice Guidance on
www.scotland.gov.uk/library2/doc16/cgpg-01.asp
12 The consultation paper, which sets out the
proposals in detail, can be can be viewed online at
http://www.scotland.gov.uk/consultations
. The consultation period closed on 28 January 2005.
13 Outlays are costs incurred in connection with a
case,
excluding solicitors' fees, for example medical
reports or housing surveys.
14 Such concerns have been raised in particular by
the Justice 1 Committee in its
Report on Legal Aid Inquiry, Scottish Parliament
(2001) and in the
Report of the Strategic Review of the Delivery of legal
aid, advice and information, Scottish Executive (2004)
15 In 1993 changes to financial eligibility for
civil legal aid came into effect which reduced the lower
income limit (below which applicants do not have to pay a
contribution) to the income support level.
16 Further information is available in the research
published by the Scottish Legal Aid Board in 2001:
Legal Aid in a changing world: Research into the
reduction in civil legal aid applications in Scotland
between 1992 and 2001.
17 A disregarded benefit is income that will
not be taken into consideration in calculating disposable
income when assessing financial eligibility.
18 Scottish Legal Aid Board,
Report on Effect of Extension of Periods For Payment of
Civil Legal Aid Contributions, Submitted to Justice1
Committee, July 2003.
19 For civil Advice and Assistance this
proposal has already been consulted on in the context of
the first stage of reform proposals.
20 As set out in Section 18 of the
Legal Aid (Scotland) Act, 1986.
21 Generally, in cases where both parties are paying
privately, the loser will pay the opponent's expenses.
However, a successful privately paying client in a cases
where the opponent is legally aided may be left to meet
some or all of their own costs.
22 For example an advice worker may represent a
client before a social security appeal or in an incapacity
benefit appeal. Such an advice worker may be an employee of
a local authority, or an advice agency.
23 This is reflected in Article 6(3)(c) of the
European Convention on Human Rights, which provides that:
"everyone charged with a criminal offence has the
following minimum rights…to defend himself in person or
through legal assistance of his own choosing, or, if he has
not sufficient means to pay for legal assistance, to be
given it free when the interests of justice so
require".
24 Commission of the European Communities (2004)
Proposal for a Council Framework Decision on certain
procedural rights in criminal proceedings throughout the
European Union.
25 Set out by the Deputy Minister for Justice at the
Joint Legal Aid Conference at Heriot Watt University,
Edinburgh, October 2004.
26 Section 33A of the Legal Aid (Scotland) Act 1986.
No Regulations have as yet been made under this section.
27 Section 23(1) and section 24(1)(a) of the Legal
Aid (Scotland) Act 1986 set that the court and the Board
respectively have to be satisfied 'after consideration of
the financial circumstance of the accused person, that the
expenses of the case cannot be met without undue hardship
to him or his dependants' before solemn or summary legal
aid can be granted. This is referred to in this
consultation as the 'undue hardship test'.
28 For summary cases and for appeals, where the
applicant did not receive criminal legal aid for the
proceedings at first instance.
29 For solemn and section 23(1)(b) cases. (Section
23(1)(b) of the Legal Aid (Scotland) Act 1986 provides that
in circumstances where a person has not been previously
sentenced to imprisonment or detention and the court is
considering such a sentence, it is the court that grants
legal aid).
30 Section 33.3 Act of Adjournal
(Criminal Procedure Rules) 1996
31 Regulation 15 of the Criminal Legal Aid
(Scotland) Regulations 1996
32 The most recent available performance figures
(Oct04 - Dec04) indicate that
SLAB decides 72% of applications in 2
days, 95% of applications in 4 days and 100% of
applications in 8 days.
33 The key proposal from the
SLAB Review of summary criminal legal
assistance is that there should be a single integrated
system for publicly funded legal assistance in summary
cases which provides advice, assistance and representation.
Further proposals are that there should be consistent
feeing arrangements providing appropriate remuneration for
work of a similar nature; and that the interest of justice
test in assessing eligibility should be retained, but that
within it the reference to the existence of a
'non-frivolous defence' should be replaced by a more robust
requirement for there to be a 'meaningful defence'.
« Previous | Contents |